DISCRETIONARY POWER OF GOVERNOR AND ITS SCOPE

As the President exercises his power being the Head of the Union, the Governor discharges his responsibilities being the Head of the State. In order to get aid and advice the Governor has a council of ministers with the chief minister at his head to exercise the functions as being provided by the Constitution of India. Though the name of the Governor is carried out but the real authority is exercised by the council of ministers as under normal circumstances it is the council of ministers that advices the Governor. But however the Governor could use certain powers without the advice of council of ministers that means that the Governor while vesting these powers need not seek or is bound to accept the advice of his council of ministers and these powers are the Constitutional discretionary powers of the Governor. About these powers the Constituent Assembly’s chairman Dr. B.R. Ambedkar expressed that, “Because the Provincial Governments are required to work in subordination to the Central Government and therefore, the Governor will reserve certain things in order to give the President the opportunity to see that the rules under which the Provincial Governments are supposed to act according to the Constitution or in subordination to the Central Government are observed.”1

These powers includes appointing of the chief minister, like in cases when there isn’t a clear majority the Governor exercises his discretionary power to appoint the Chief Minister. The Governor could dismiss a ministry after it loses the support of the house using the discretionary power or could advice the President to impose emergency in a case when he realizes that the Government cannot be carried on according to the Constitution, he has the power of reservation of a bill for the consideration of the President, though there are certain situations where the bill could be reserved but still this is one discretionary power of the Governor. And also the Governor prorogues, summons and dissolves the legislative assembly.

These Constitutional provisions that deal with such powers are apparently inherited from the Government of India Act, 1935, they have been retained with some modifications in

independent India’s Constitution as a safeguard for the unity and integrity of the union of India that was formed by the merger of numerous British administered provinces and princely states.

ISSUES CONCERNING THE EXERCISE OF THESE POWERS

But despite of the pure intentions of the Constitution makers, the usage of these discretionary powers has turned in a different direction from that of Constitutional propriety, and it had become a source form which tensions have been created in the relations of the centre and the state. The reason behind it is the scope of these powers as well as the factors related to the politics.

And this position being misused is an issue that cannot be overlooked and especially this happening when the ruling party is at the centre. In a number of cases these discretionary powers of the Governor have clearly gone against the constitutionally mandated neutral seat considering the cases where former bureaucrats or politicians with a particular political ideology get the Governors chair by the government. With the issues concerned there has always been a dicey situation about the purview of the role of the Governor when the parliament is hung. Hung parliament is a situation where any single party or coalition of the political parties does not have a majority to prove in the house of legislative assembly. So in such a situation in order to establish the government the government must first invite the majority party as a matter of convention, but the decision needs to be on sound basis and informed in order to make a sound government. Moreover even this discretionary power of the government to get the largest party invited has often been misused in order to be favourable to a particular party. The situation of hung parliament has been there numerous times, like the verdict of the Karnataka Assembly could not reach a point of conclusion as no single party won majority. With such results the Governor either had to invite the new government to be a part of single largest party or the leader who with the post poll elections had claimed the majority.2 And a situation similar to this arose very recently in the Maharashtra elections where the elections did not come out with a clear majority side and hence the Governor was left in a situation to handle the situation, even though BJP was the largest party but yet it failed to form

the government in the state and ultimately an alliance of other parties formed the government. And while all this was happening the Governor used his discretionary power of President’s Rule.3

DISCRETIONARY POWERS AND JUDICIAL REVIEW

Even though the Governors committee (1971) had laid it down as Governor’s responsibility to make sure that the state administration does not break down due to political instability being the cause and a regular report must be sent about the state’s political situation. But still imposing President’s Rule in a state has been misused frequently by the central government, and Governor does not exhaust all the other remedies before taking this step in some cases.

It was recommended by Justice V. Chelliah Commission (2002) that article 356 must be used sparingly and as a remedy of the last resort after exhausting all actions under article 256, 257 and 355.

The Supreme Court in Nabam Rebia judgment4 (2016) ruled that when it comes to the Governor’s discretion under Article 163 it is limited and the choice of his actions shouldn’t be fanciful or arbitrary but rather it must be a reasonably dictated choice which is tempered by caution and exercised in good faith only.

Dr. A P J Abdul Kalam, in 2006, while addressing the Governors, laid stress on the importance of the recommendation of the Sarkaria Commission and said, “While the Constitution provides for many checks and balances, the Governor’s office has been granted independence in order to rise above day-to-day politics and circumvent compulsions whether arising from the center.”5 The Sarkaria Commission (1998) gave its recommendation about Article 356 saying that it should be used in very rare cases when the situation is such that it is becoming Impossible to restore the breakdown of the Constitutional machinery in the state. And also before taking any

action under this Article the state Government should be issued a warning that its functions are not in accordance with the Constitution.

A five judge Constitutional bench in the case of Rameshwar Prasad v. Union of India 6 supported the RS Sarkaria Commission’s suggestions in its study regarding the centre state relations which illustrated that the impartiality of the Governor and their position in maintaining the Constitutional mandate. And later in the M M Punchhi Commission also briefed how the Governor should follow “Constitutional convention” in case of hung assembly, and the leader of the majority party or the leader of the pre poll coalition party if they have the majority should be called upon to form a government, and if there is no clear majority then the chief minister should be appointed in following manner –

1. A group of party having the largest pre poll alliance;

2. The largest party with the support of other parties seeking to form a government

3. A post-electoral coalition with all allies which join the regime;

4. A post-electoral alliance in which factions enter the government and the remaining ones, including independents, support the government from outside.

In the case of S.R. Bommai v. Union of India7 a nine-judge bench had illustrated that it is important to conduct a floor test as soon as possible by the Governor. A floor test is the conclusive evidence of the majority of the house in figures.

THE WAY FORWARD

Even though the Constitution of India provides the Governor with these discretionary powers still there have been issues concerning the use of these powers in a judicious manner and here begins the role of the judiciary and many a times these Governors have been given valuable guidelines. For the smooth and effective functioning of the democratic government, the Governor must act in a judicious, impartial and effective manner when he exercises his discretion and judgments considering the current political climate. To avoid the misuse of these powers and to make sure that the Governor discharges his functions properly there should be a proper code of conduct laying down certain principles and norms guiding the exercise of

discretionary powers of the Governor which is approved by the parliament, central government and the state legislature. And the exercise of these powers should be guided by a healthy and democratic convention.

The Governor’s office should be invested with requisite independence of actions and should not be under a constant threat of being removed by the central government and for this a proper procedure for appointment of Governor should be laid down clearly with proper conditions of appointment. The Governor must refrain from aligning himself to a particular political ideology. Since the role of the Governor is indispensable for the Constitutional democracy to work successfully, it is very essential that the virtue of impartiality is withheld in order to ensure the attainment of proper democratic functionary

Author: Rishita Joshi, Legal Intern at Legal Desire (June 2020)

I am pursuing BBA LLB (Hons.) from Nmims, Kirit P. Mehta school of law, Mumbai. Researching and learning about new things has always attracted me, especially when it is about any socio-legal- political issue.